U.S. v. Johnson

• Decision Date: 15 September 2000
• Docket Number: No. 00-1017,00-1017
• Citation: 228 F.3d 920
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA, APPELLANT, v. MARY JANE JOHNSON; RICKEY JOE BRADSHAW, APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 920

228 F.3d 920 (8th Cir. 2000)

UNITED STATES OF AMERICA, APPELLANT, v. MARY JANE JOHNSON; RICKEY JOE BRADSHAW, APPELLEES.

No. 00-1017

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 15, 2000

Filed: October 10, 2000

Appeal from the United States District Court for the Eastern District of Arkansas

Before Bowman, Beam, and Bye, Circuit Judges.

Bye, Circuit Judge.

Six days before trial, the government informed counsel for defendants Mary Jane Johnson and Rickey Joe Bradshaw that it intended to elicit expert testimony at trial. The defendants immediately moved to suppress that expert evidence. The district court concluded that the government had reneged on a promise to provide expert testimony in discovery, and granted defendants' motion to suppress. The court then stayed the trial so the government could pursue this interlocutory appeal. We reverse.

BACKGROUND

A grand jury in the Eastern District of Arkansas indicted Johnson and Bradshaw (along with others not party to this appeal) on February 10, 1999. The indictment charged them with a single count of conspiracy to distribute methamphetamine in violation of 18 U.S.C. § 846.

Johnson and Bradshaw were represented by separate counsel. On May 18, 1999, Bradshaw filed a motion requesting discovery from the United States Attorney's office. The motion sought information pertaining to statements made by the defendants, the defendants' prior criminal records, documents and other objects relied upon by the government, and scientific or medical reports or examinations. The request for discovery tracked the language in Fed. R. Crim. P. 16(a)(1)(A)-(D).

On May 21, 1999, the government responded to the motion, agreeing to produce all of the information sought by Bradshaw. Although Bradshaw had not specifically asked the government to provide any "expert evidence,"¹ the government's response agreed to provide such evidence. The government sent an identical response to Johnson, although her lawyer had not moved for discovery.

On June 16, 1999, the court ordered discovery in accordance with the government's response. The order provided that "the Government, by its Responses, has agreed to comply with, or exceed, the requirements of Rule 16 . . . [t]he Government is hereby ordered to provide what it has agreed to do in its Responses."

After several continuances, the trial was scheduled for December 16, 1999. The Friday before trial, December 10, the Assistant United States Attorney (AUSA) faxed a letter to counsel for Johnson and Bradshaw. That letter disclosed, for the first time, the government's intention to call DEA Agent Roger Case as an expert witness. The letter stated that Agent Case would testify about the methods of distribution employed by methamphetamine gangs, indicia of distribution, the street values of methamphetamine, and several other matters.

Agent Case had worked on the investigation and prosecution of Johnson and Bradshaw, and the defendants knew that Case would testify at trial as a fact witness. But the defendants did not know that Case would be called to opine as an expert. On December 13, the first working day after receiving the AUSA's faxed letter, Johnson and Bradshaw jointly moved to suppress Agent Case's proposed expert testimony. The defendants argued that the government had violated Rule 16(a)(1)(E) by failing to disclose Agent Case as an expert in response to the May 18 discovery demand. In addition, the defendants pointed to the government's May 21 response, in which the government agreed to disclose "expert evidence."

Two days before trial, the district court held a telephone conference regarding the defendants' motion. The court granted the defendants' motion and excluded Agent Case's proposed expert testimony, finding that the government had broken its promise to reveal any expert testimony in its May 21 response to Johnson and Bradshaw. The next day, the government filed a motion for reconsideration; the court denied that motion after a further telephone conference. The government then filed this interlocutory appeal, and the district court stayed the trial pending its outcome.

JURISDICTION

Johnson and Bradshaw challenge our exercise of appellate jurisdiction. We must, of course, establish a proper basis for jurisdiction before analyzing the merits of a case. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95 (1998).

Section 3731 of Title 18 permits the government to pursue an interlocutory appeal from an order suppressing evidence upon satisfaction of three requirements:

(1) the defendant has not been put in jeopardy;

(2) the appeal is not taken for purpose of delay; and

(3) the evidence is a substantial proof of a fact material in the proceeding.

Johnson and Bradshaw do not challenge the government's compliance with the first two requirements, non-jeopardy and lack of delay. Rather, they concentrate their attack on the third element, materiality. They interpret § 3731 to require an independent evaluation of the "materiality" of the facts prompting the government's appeal. Employing that standard, they contend that Agent Case's expert opinion is not material to the government's case-in-chief, and they therefore conclude that our jurisdiction is lacking.

We have not previously had occasion to examine what showing must be made to permit an interlocutory appeal under this portion of § 3731. Other circuits have split on this question. The Ninth Circuit, apparently alone, requires the government to prove that the evidence suppressed by the district court is actually "material" to the upcoming trial. Sitting en banc, the Ninth Circuit held that,

[o]ne of the conditions [for appeal via § 3731] is that the evidence suppressed must be substantial proof of a fact material in the proceeding. This condition must be met before appeal of the suppression order can properly be taken. . . . [T]he suppressed evidence (dynamite) is not substantial proof of any material fact in the nondynamite counts of the indictment. The trial court found as much. Given the government's failure to satisfy this condition, its appeal of the suppression order as it relates to the nondynamite counts was improper.

United States v. Loud Hawk, 628 F.2d 1139, 1150 (9th Cir. 1979) (en banc); see United States v. Adrian, 978 F.2d 486, 490 (9th Cir. 1992).

In contrast, at least two other circuits have decided that appellate jurisdiction is proper if the government simply certifies that the evidence suppressed is substantial proof of a material fact. These circuits suggest that a court of appeals need look no further than the existence of an executive certification that the evidence suppressed is material. See United States v. Kepner, 843 F.2d 755, 761 (3d Cir. 1988); In re Grand Jury Investigation, 599 F.2d 1224, 1226 (3d Cir. 1979) ("Pursuant to 18 U.S.C. § 3731, the United States Attorney has certified that this appeal 'is not taken for the purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.' The district court having received this certification, we are not required by section 3731 to evaluate independently the substantiality or the materiality of the contested material."); United States v. Comiskey, 460 F.2d 1293, 1297-98 (7th Cir. 1972).

Although we have not adopted a position, one of our prior cases suggested (purely in dictum) that we would follow the latter approach. See United States v. Juvenile Male J.A.J., 134 F.3d 905, 907 (8th Cir. 1998) ("Other unreviewable acts of prosecutorial discretion include . . . a United States Attorney's certification under 18 U.S.C. § 3731 that an appeal from an adverse suppression ruling is not taken for purposes of delay and involves evidence material to the proceedings") (citing Kepner, 843 F.2d at 761).

A textual analysis of § 3731 supports the latter approach, requiring only executive certification to establish appellate jurisdiction. The second and third requirements (lack of delay and materiality) share the common modifying phrase, "if the United States attorney certifies to the district court." See 18 U.S.C. § 3731. The syntax implies that executive certification establishes both lack of delay and materiality. Further, the "lack of delay" and "materiality" elements of § 3731 are joined in parallel structure, demarcated by two instances of the word "that." See id. § 3731 ("if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.") (emphasis added). The language of § 3731 implies that mere certification is required to demonstrate materiality.

The government's Notice of Appeal states that "[t]he United States Attorney hereby certifies that this appeal is not taken for the purpose of delay and that the evidence excluded is a substantial proof of facts material in the proceeding." In light of our conclusion above, we need not examine whether Agent Case's expert testimony would actually be substantial proof of a material fact. The government has so certified; that suffices.² We have jurisdiction to hear this interlocutory appeal.

DISCUSSION

We review for an abuse of discretion a district court's decision to sanction the government for discovery violations. See United States v. DeCoteau, 186 F.3d 1008, 1009 (8th Cir. 1999).

A. Defendants' Right to Discovery

Criminal defendants do not have a general constitutional right to discovery. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977). In most circumstances, then, a defendant must point to a statute, rule of criminal procedure, or other entitlement to obtain discovery from the government.

The government acknowledges that Rule 16 permits a defendant to request disclosure of expert evidence upon which the government will rely at trial. See Fed. R. Crim. P. 16(a)(1)(E). But the government argues that "in the case at hand, neither...